Immigration Q&A – Part 1

By Ron Gotcher

Immigration Attorney

Q: What is the status of the legislation that would lift the per country quota?
HR 3012 easily passed the House last November. It stalled in the Senate when Sen. Grassley placed a “hold” on it. He lifted his hold in June, in return for further restrictions on the H1B program, but additional opposition developed and the Senate ran out of time. There is a small chance the Senate will consider it in September, but it is more likely that if it is passed at all, that will happen in the brief session held after the election in November. Given the limited amount of time left in this Congress, however, the odds of this legislation being enacted into law are not very good.

Q: Can someone travel on an H1B visa issued for a former employer?
: As long as it has not expired, yes. Both the State Dept. and DHS agree that the combination of an unexpired visa (even if issued for a former employer) and a current I-797 approval notice constitute valid entry documents for a returning H1B.

Q: What are some of the reasons for H1B visa denials in India?
There are many reasons for these denials, including the fact that some members of the Senate are putting pressure on the State Dept. to scrutinize applications more carefully. We see many instances where an applicant presents an approved H1B petition for a job in New York, together with an end-client letter for San Francisco. Without an amendment, this H1B petition approval is invalid and the visa will be denied. In other cases, the applicant does not seem to know the terms of the agreement specified in the approved H1B petition, or other important details about the petition. Even when everything is perfect, we have seen visas refused for seemingly irrational or unexplained reasons.

Q: Is it possible to keep an old employment based priority date?
Yes. The law explicitly specifies that once an I-140 employment based petition is approved for someone, that person is entitled to use that priority date for all subsequently approved I-140. It doesn’t matter if the new I-140 is for a different job or in a different preference category. The only exception to this rule is that if the I-140 is revoked by the USCIS because the original approval was gained through fraud or mistake, then the individual may not claim it. If an employer revokes the I-140, however, the individual is still entitled to use that priority date for a new I-140.

Q: Is it possible to upgrade from EB3 to EB2?
Yes it is, assuming that the individual and the job both qualify for EB2. Many people with existing EB3 approvals are now upgrading to EB2 and keeping their old EB3 priority dates. If someone has an EB3 based adjustment of status on file, and the upgrade to EB2 makes them “current” for visa waiting list purposes, the USCIS will approve their adjustment application very quickly and issue a green card.

Q: Can I use a three-year bachelor’s degree and five years of experience to qualify for EB2?
No. The USCIS does not regard a three-year bachelor’s degree as the equivalent of a U.S. bachelor’s degree and they will not approve such cases for EB2 classification. In addition, because they require a “degree” they will not count subsequent post-secondary diploma programs as qualifying an applicant as having the equivalent of a U.S. bachelor’s degree.

Q:  What kind of visa cutoff date movement are we likely to see in October?
  Employment based (EB) visas will become available again for India in October. The State Dept. has said, however, that there won’t be much forward movement for the first six months of the new fiscal year. Look for the EB2 cutoff date to be established at or close to September, 2007 in October. It should then advance to early 2010 by May or June of next year.

Q:  If my H1B employer moves me to a new job site, do I need an H1B amendment?
:  Yes. While many employers simply file a new LCA before moving an employee, the USCIS now says that an amendment is necessary and that if the employer doesn’t file an amended I-129, employment at the new job site is unauthorized.

Q: If I apply for change of status (COS) in the U.S., go abroad and come back, is my COS still valid?
No, the law states explicitly that when you leave the U.S. after applying for COS, it becomes void immediately upon departure

Data provided by:

Ron Gotcher
Global Immigration Partners, Inc.

For questions, please email: [email protected]